Attorneys unable to reach Covid-positive inmates at SeaTac prison

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t was through an email sent on December 18, 2020 that defense attorney Sadé Smith found out that her client, José Escoto-Fiallos, had tested positive for Covid-19 for the second time since he got to the SeaTac Federal Detention Center in August — and the third time since the pandemic got underway.

By December 21, prison officials had reported a total of 124 active Covid cases among inmates and 16 among staff. Smith hasn’t been able to check in with Escota-Fiallos since learning he had Covid again; prison officials temporarily banned telecommunication for Covid-positive detainees, citing the risk of transmission for other inmates and staff.

But several defense attorneys with clients at the federal detention center in SeaTac maintain that the moratorium, which was in effect for at least two weeks, with Monday, January 4 cited as the earliest possible lift date, is a violation of detainees’ Sixth Amendment right to legal counsel.

It’s unclear whether the telecommunications embargo has been lifted yet for inmates who had active Covid cases as of December 21; the Federal Bureau of Prisons, which operates FDC SeaTac, has not responded to KUOW’s multiple requests for comment.

But defense attorneys say it’s their understanding that telecommunication access is restricted for all inmates who test Covid-positive for the duration of their quarantine period.

“One of the reasons why we can justify keeping people detained pretrial, before they are adjudicated, before a jury or a judge finds them guilty, is that we allow them to have access to counsel,” said attorney Emily Gause, who has seven clients being held at the SeaTac detention center, six of which have tested positive for Covid. “That's required by the bail Reform Act and that's not happening here.”

As of Monday, the Bureau of Prisons reports 53 active cases of Covid-19 at the SeaTac facility, including 11 staff. To date, 287 cases have been reported at the detention center. But several defense attorneys with clients in detention there worry that those numbers don’t convey the whole story.

“There's constantly a greater level of harm that's not being reported,” Smith said. “By the time we get the information, it's months and weeks later.”

Defense attorneys have pointed to discrepancies between outbreak data that is publicly reported online and what is communicated by prison officials during briefings with judges and lawyers. They’ve also outlined concerns about whether Covid-positive inmates at the facility are being tested again for the disease following the 14-day quarantine period.

In addition to having Covid twice while at the detention center, Smith said Escoto-Fiallos has gone without medical treatment for several other ailments known to staff since he arrived in August.

“It's not just the fact that Covid’s happening — already existing infections and harm are not getting treated as well,” Smith said. “There's a really great issue for medical neglect.”

Smith and Gause said they haven’t been able to reach their clients since they tested positive for Covid in December. Several attorneys have filed motions in federal court in an effort to restore phone access for Covid-positive detainees, to which counsel representing the detention center has objected.

A declaration filed in the U.S. District Court for the Western District of Washington on December 23 outlines management’s rationale behind the telecommunications restrictions.

“Until recently, inmates with active cases of Covid-19 had been provided access to telephones for legal calls,” the filing states. Staff members would bring phones to an inmate’s cell.

“The staff member would then wait outside the cell in an open, common area, possibly for hours at a time, until the call concluded. The staff members wore protective equipment, but as with front line workers in all fields who come in direct contact with people infected with Covid-19, this still posed a substantial risk of infection.”

The filing states that written communication, however, between Covid-positive detainees and their lawyers is still permitted.

In April 2020, a federal judge in Maryland ordered that inmates held at a federal prison in Washington, D.C., be afforded access to telecommunication with their legal counsel and for court appearances, regardless of their Covid status. Defense attorneys with clients at the SeaTac detention center are seeking the same relief.

In September, prior to the SeaTac facility banning telecommunications for Covid-positive inmates, a spokesperson for the Federal Bureau of Prisons told KUOW in an email statement that “during this time, access to legal counsel remains a paramount requirement” for detainees at facilities operated by the agency.

But communication roadblocks existed even before the most recent Covid outbreak, Gause said.

“Since March, my access to my clients has been dismal there,” Gause said. “I have not seen them in person, unless it's been a unique circumstance where I have to see them in person, such as when I'm reviewing the paperwork with them or something else.”

Smith and Gause also said they have been effectively blocked from being able to access their clients’ medical records, being told by government counsel that the records must be obtained through public records requests, submitted with a signed release.

“It's especially troubling for me, because without having a really good sense of what my clients’ risk factors might be ... I don't know if they are having troubles,” Gause said. “I don't know if they're suffering, and I can't advocate for them at all. I can't bring a motion for emergency relief to try to get them out of custody, or to a hospital on their behalf.”

Gause contrasted that lack of access with what she described as “unfettered access” to those records by federal prosecutors, who are tasked with notifying defense attorneys when their clients are Covid-positive.

Gause also voiced concerns about where Covid-positive inmates were being isolated in relation to others housed at the facility.

“My clients have told me that when they say that they're quarantining people, they literally are moving them to a different floor of the same open air pod,” she said. “Covid can travel the air — it’s why we closed down restaurants and all the other things, right? It has no logic.”

For her part, Smith said she worries about how repeatedly having Covid-19 could affect Escoto-Fiallos’s health in the long run.

“Covid, runs rampant through somebody's body, wreaks havoc, and then it continues to get multiple opportunities to harm him,” Smith said. “FDC is not doing what it's supposed to do. So the fact that somebody is getting exposed multiple times is extremely terrifying.”

Bureau of Prisons spokesperson Emery Nelson told KUOW via an email statement in September that to mitigate the spread of Covid-19 at its facilities, “inmates are limited in their movements within the institution, with inmate movement in small numbers authorized for access to commissary, laundry, showers, telephone and electronic messaging access, medical and mental health care, and some essential work details or work assignments.”

The statement goes on to say that staff at detention facilities “make frequent rounds throughout housing units, door-to-door, conducting wellness checks.”

Nelson also noted that inmates exhibiting Covid symptoms “will be tested” adding that “a contact investigation is then conducted to identify any potential exposures and may include widespread testing as clinically indicated.”